LFL executive director Eric Paulsen said the previous Barisan Nasional (BN) administration had eroded judicial independence by ushering in the duo’s appointment despite the barrage of criticisms and legal challenges filed against them.“Their departure is only the first step in restoring the tarnished reputation of our judiciary while senior and more qualified judges should no longer be overlooked and frozen out of promotion in favour of junior judges.

“The Judicial Appointments Commission (JAC) must also be reformed to ensure that the selection and elevation of future judges will be devoid of political consideration,” he said in a statement today. Read more →

Court of Appeal president Zulkefli Ahmad Makinudin (left) and Chief Justice Raus Sharif (right) were scheduled to retire upon reaching the mandatory retirement age of 66 plus six months. — Bernama pic

PETALING JAYA: A former Malaysian Bar president has opposed a lawyer’s suggestion that Attorney-General (AG) Tommy Thomas review an earlier stand to declare as legal the appointments of two judges to remain in office beyond their retirement age.

Zainur Zakaria said it would be improper for Thomas to take such a stand just because there had been a change in the federal government.

He added that Thomas, the AG, was a member of the Bar.

“If he is to reconsider and withdraw the submission put forward by his officers, it will be seen as bias in favour of the Bar,” he told FMT.

He said Thomas had no choice but to defend the submissions put forward by the Attorney-General’s Chambers.

“Let the due process take its course. It is best for the judges to decide,” he said, adding that the Bar must have confidence in the judiciary as it had taken the matter to court. Read more →

LAST week a larger than normal number of Federal Court judges (seven) heard a case unprecedented in Malaysian legal history. The Malaysian Bar challenging the constitutional validity of the appointment of the chief justice (CJ) and the president of the Court of Appeal (PCA).

The Bar contended as follows. The Constitution explicitly states that the CJ’s term of office is to be 66 years plus six months. After that he must retire. Only a person appointed by the CJ as an additional judge can hold office beyond this prescribed period. Such appointment is expressly provided for in the Constitution. There is no extension allowed for the CJ’s term. So his term ends in accord with the constitutionally-prescribed tenure period.

But, argued the Bar, the CJ’s term was extended through a rather convoluted and unconstitutional process.

Ambiga said it was not a ‘happy task’ for those involved in the lawsuit and for the Federal Court panel hearing it, but said upholding the Federal Constitution is a burden that the judges have to shoulder. — Picture by Shafwan Zaidon

PUTRAJAYA, March 14 — The judiciary’s independence will be affected if the Federal Court decides that the appointment of the country’s two top judges beyond their mandatory retirement age is valid and constitutional, the Malaysian Bar’s lawyer said today.

Datuk Ambiga Sreenevasan, a lawyer for the Malaysian Bar in the legal body’s lawsuit challenging the top two judges’ appointments, told the Federal Court to consider the impact if the apex court were to uphold last year’s appointment of the Chief Justice and the Court of Appeal president.

She summed up the “far-reaching” consequences expected, including the mandatory retirement age in the Federal Constitution becoming “meaningless” and the promotion of judges being affected.

“And it affects the independence of the judiciary because it affects security of tenure,” she told the Federal Court.

Ambiga was referring to the Malaysian Bar’s argument that the appointment of Tun Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin as “additional judges” of the Federal Court for three years and two years respectively would affect judicial independence, as such appointments are for varying and unfixed periods. Read more →

PUTRAJAYA: The Federal Court today ruled that it had no power to direct the present chief judge of Malaya (CJM) to advice the king that a special panel of retired judges be appointed to rule on the legal status of the country’s two top judges.

A three-man bench led by Hasan Lah said under Article 122 (1A) of the Federal Constitution, it was the chief justice who had the sole discretion to advise the king to appoint additional judges.

Hasan added that Article 131A, which allowed the most senior judge to exercise the powers of the chief justice during his incapacity or absence, was only discretionary.

“No one else, not even the court, has the constitutional right to direct or dictate that discretion to be exercised,” he said in dismissing the Malaysian Bar’s motion.

Sitting with Hasan were Zaharah Ibrahim and Balia Yusof Wahi. Read more →

KUALA LUMPUR, Oct 24 — The prime minister has no legal duty to advise the country’s ruler to cancel the chief justice’s (CJ) appointment, as there was no such duty written in the Federal Constitution, the High Court was told today.

Senior federal counsel Alice Loke Yee Ching said she had objected against Tun Dr Mahathir Mohamad’s bid to further his lawsuit, also explaining that she had argued that Dr Mahathir cannot seek a mandamus or court order to compel the prime minister to push for the ruler to revoke royal assent for the Chief Justice’s appointment.

“I said it has nothing to do with the government,” she told reporters when met at the Kuala Lumpur court complex today.

“But whether he can ask for mandamus against the prime minister, I said he cannot, because he must show legal duty on the part of the prime minister to advise the Yang di-Pertuan Agong to revoke.”

“Constitution doesn’t provide for legal duty on part of the prime minister to advise the Agong to revoke the appointment or to revoke the assent given to the appointment. The Constitution does not show the prime minister has duty, so for that reason, mandamus cannot arise.

“Mandamus can only arise if there is legal duty in statue on part of the public officer to do something,” she added. Read more →

KOTA KINABALU: The High Court here today dismissed an application for leave for judicial review on the appointment or continuation of Md Raus Sharif as the chief justice of Malaysia on Aug 5.

The court also dismissed an application by lawyer Marcel Jude MS Joseph to declare that the individual who should rightfully be appointed as the chief justice after Aug 5 is Richard Malanjum, the current chief judge of Sabah and Sarawak.

The application was dismissed with a cost of RM3,000 awarded to Md Raus as the sole respondent.

The suit was filed before the court on Sept 26 when Marcel sought an order of certiorari to quash Raus’ appointment as the chief justice, or continuing in the position, from Aug 5.

The key issue before the High Court sitting was to review whether the appointment or continuation of Raus’ service was lawful and constitutional, or whether it contravened Article 121(1) of the Federal Constitution regarding the coordinate jurisdiction of the High Court of Sabah and Sarawak and the High Court of Malaya. Read more →

KUALA LUMPUR, Oct 3 — The top two judges currently holding the posts of Chief Justice and Court of Appeal president took their oaths of office according to the requirements of the Federal Constitution, the judiciary’s administrative arm said today.

The Chief Registrar’s Office of the Federal Court confirmed that both Tun Md Raus Sharif and Tan Sri Zulkefli Ahmad Makinudin had fulfilled the constitutional requirements to be appointed to two of the most senior positions in the country’s judiciary.

“With this, the Federal Court of Malaysia’s Chief Registrar’s Office states that the Chief Justice of Malaysia and the Court of Appeal President had taken their oaths of office as Additional Judges for the Federal Court before they took their oaths of office as the Chief Justice of Malaysia and Court of Appeal President in line with the provisions of the Federal Constitution,” it said in a statement issued by its corporate communications unit.

The Chief Registrar’s Office said that Raus had on August 4 taken his oath of office as an additional judge for the Federal Court at the Palace of Justice before Zulkefli in the latter’s position as Court of Appeal president. Read more →

Dr Mahathir’s lawyer Mohamed Haniff Khatri Abdulla said the government is expected to raise an objection to the lawsuit.

“They would be saying we have not crossed the threshold to direct the prime minister to advise the Yang di-Pertuan Agong in order to revoke or terminate the extension of Tan Sri Md Raus Sharif,” he told reporters after case management before High Court judge Datuk Kamaludin Md Said.

Datuk Amarjeet Singh, who heads the Attorney-General’s Chambers’ civil division, confirmed that he would be raising the preliminary objection that Dr Mahathir had not crossed the legal threshold required to proceed with the lawsuit.

The three respondents named in Dr Mahathir’s application for leave for judicial review are Prime Minister Datuk Seri Najib Razak, the federal government, and Raus. Read more →

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